If your client is convicted at trial, you turn to mitigating factors or hope for an impressive character witness. You can't do much better than a blubbing bossby Alex McBride / May 20, 2006 / Leave a comment
The game’s up. Your client has just been convicted at trial or done the decent thing and pleaded guilty. You stand up and apologise on his behalf. This is known as mitigation. There are set mitigating factors that will automatically reduce a sentence, like never having been convicted before, or pleading guilty at the first available opportunity. You work with the material you get: a junkie shoplifter with four packs of Lidl’s frozen chicken down the front of his trousers and 45 previous convictions is heading only one way. Clarence knew he was getting a “bird”—slang for a prison sentence. The only question was: how long? He arrived at court as if he were going on a cruise. He had three large bags, two cardboard boxes and a stereo to which he had duct-taped his favourite CDs. “Got to have your creature comforts,” he said. It was hard to disagree. After sentencing, you’re not allowed to pass anything to your client because he is now a prisoner, so we checked his bags into the cells early. The jailers were very reluctant but Clarence insisted he couldn’t possibly go away with anything less. He was too likeable to refuse.
Sitting outside court, Clarence explained how it had all gone wrong. His dad had disappeared when he was a baby. He’d craved a father figure and found him in a sly, old con who’d taken him under his wing. The con would dream up the wheezes and Clarence would help to make them work. When he got five years for dealing the con’s drugs, he loyally kept his mouth shut. No one grasses up his old man.
A guy about Clarence’s age was waiting to be sentenced, too. “You can do prison hard, or you can do it easy,” the man said. “If the screws wanted me out of the cell, they’d have to come and get me. If they pissed me off, I’d smear everything in shit.” Clarence chose easy. His tactic was to get a job in the laundry because then he had something to trade. If you didn’t keep the laundry sweet, they’d ruin your clothes, not through malice but because washing on an industrial scale takes its toll. You were paying for service.
The last time Clarence went inside he was addicted to crack cocaine. But despite the fact that most prisons are awash with drugs, he managed to get clean. He was a model prisoner and passed exams in computers and English. When he got out he left his old life behind. He made a good marriage, had a couple of kids and found a job driving lorries. But it’s not easy to escape a past. Some years later, he received a call from his old life. The old con was in jail and needed Clarence—to whom, he reminded Clarence, he’d always been a father—to do him one small favour. At first, Clarence refused. He had a family. But the con wouldn’t give up. Prison is hard for an old man. All he was asking for was one social visit. Gradually he wore Clarence down. “This is why it’s so hard to leave that life behind. How could I say no? He was desperate. I owed him.” This logic might seem specious but for Clarence it was an act of love for a father who’d cared. He arrived at the prison with heroin concealed in his belt and wedged between his buttocks. He was nervous and it showed. CCTV cameras watched his every move. The whole enterprise was suicide, a beau geste for old time’s sake. As he tried to pass the drugs the prison guards swooped.
Defendants always ask what sentence they’re going to get and Clarence was no exception. It’s wise to err on the high side to avoid disappointment. The guideline case of Prince is clear; it concerned a man who’d brought heroin into prison for his son. He had no previous convictions, unlike Clarence, and entered a guilty plea at the first opportunity. In upholding a five-year sentence the court of appeal said that “the supply of [heroin] to a serving prisoner is a most serious offence and a lengthy custodial sentence was required.” Until recently, four years was an important line. If you got under four, you were considered a short-term prisoner and served only half your sentence. If you got over four, you had to serve two thirds. (Last year the government changed the rules and now long-term prisoners are also released after serving half their sentence. Clarence was sentenced under the old law.)
The courtroom was packed; rows of barristers were squeezed into the public gallery waiting their turn. Clarence was one of many to be processed that day. Mitigation works best if you can get the judge, battle-hardened from years of sentencing, to look beyond the mechanical exercise of sticking numbers on bodies. To do that you have to tell the truth. It was Clarence’s talent for friendship, the generosity which had landed him in court in the first place, which ultimately made the difference. Along with his luggage, he’d brought his boss as a character witness. The boss, a young man about his age, told the judge about his friend. He talked about Clarence’s hard work and integrity and as he did so he began to cry. He cried because of the injustice of Clarence’s life, and his triumph in spite of it. The judge, exercising his discretion, gave him three years. On an electronic tag, he’d be out in a year. All I could think of was the next barrister, and his luckless client; it would be no fun trying to follow that.